University of Baltimore Law Review
Volume 33
Issue 1 Fall 2003
Article 3
2003
American Courts-Martial for Enemy War Crimes
Tara Lee
DLA Piper
Follow this and additional works at: http://scholarworks.law.ubalt.edu/ublr
Part of the International Law Commons, and the Military, War, and Peace Commons
Recommended Citation
Lee, Tara (2003) "American Courts-Martial for Enemy War Crimes," University of Baltimore Law Review: Vol. 33: Iss. 1, Article 3.
Available at: http://scholarworks.law.ubalt.edu/ublr/vol33/iss1/3
This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in
University of Baltimore Law Review by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information,
please contact [email protected].
AMERICAN COURTS-MARTIAL FOR ENEMY WAR CRIMES
Tara Leet
INTRODUCTION
I.
During the Persian Gulf War in 1991, nineteen American servicemen and two American servicewomen were taken prisoner by Iraq.}
All suffered physical abuse. 2 They were beaten, urinated upon, and
electrocuted. 3 They sustained broken bones, perforated eardrums,
and chipped teeth.4 One of the servicewomen was sexually molested. 5
During and preceding that conflict, it was widely reported that Kuwaiti
prisoners and Iraqi civilian detainees were subjected to even worse
treatment, including death by acid bath immersion, gang rapes in
front of family members, and torture with electric drills. 6 Despite
these acts, no trials based on any of those crimes were ever held. 7 No
tribunals were convened by the United States or the United Nations. 8
In fact, no charges were ever filed in any international forum based on
the Iraqi war crimes of the 1991 Persian Gulf War.9
t Resident Fellow, Center for the Study of Professional Military Ethics,
1.
2.
3.
4.
5.
6.
7.
8.
9.
United States Naval Academy. My thanks to Scott Silliman, Director,
Center for Law, Ethics, and National Security, Duke University School of
Law, and LCDR Daniel P. Shanahan, JAGC, USN, for their helpful
comments.
Christopher Dickey & Donatella Lorch, Military justice: Saddam's Crimes,
NEWSWEEK, Feb. 17, 2003, at 42.
Id.
Id.
Id.
Id.
JUDGE ADVOCATE GENERAL, DEPARTMENT OF THE ARMY, SUMMARY OF REpORT
ON IRAQI WAR CRIMES (DESERT SHIELD/DESERT STORM) (1992), at 8, at
http://www.gwu.edu/-nsarchiv/news/20030320/iraqicrimes.pdf [hereinafter SUMMARY OF REpORT ON IRAQI WAR CRIMES]. See also Louis Rene Beres,
The War's True Measure; The Dosier of War Crimes Grow in Iraq, CHI. TRIB., Apr.
6, 2003, at C1 (describing official reports of Iraqi war crimes committed
against Kuwaiti civilians, including: torture by amputation of or injury to
limbs, eyes, tongues, ears, noses, lips, and genitalii\; the use of electric drills
and acid baths on victims; the repeated rape of women taken hostage; and
numerous eyewitness accounts of Iraqis torturing women by making them
eat their own flesh as it was cut from their bodies); Dickey & Lorch, supra
note 1 (reporting that the final Pentagon report on Iraqi war crimes during
the 1991 Persian Gulf War included "several linear feet of files").
Dickey & Lorch, supra note 1.
Id.
Id. There have been rare instances of domestic war crimes complaints arising in European countries with universal jurisdiction statutes. For example,
charges based on Iraqi war crimes were filed by Danish authorities in No-
49
50
Baltimore Law Review
[Vol. 33
There have also been reports of potential war crimes during the
recent war in Iraq. On March 23, 2003, members of the V.S. Army's
507th Maintenance Company were captured near Al-Nasiriya, Iraq.lO
That same day, Iraqi state television broadcasted images of five captured American soldiers being questioned by their captors. II V.S. officials, including Defense Secretary Donald Rumsfeld immediately
responded by characterizing the broadcast as a violation of the Geneva Conventions. I2 At one point during the conflict, American officials reported that a number of captured American soldiers may have
been summarily executed in front of Iraqi townspeople. 13 At least one
witness reported that an American prisoner was tortured during captivity.I4 Iraqi soldiers also committed other war crimes against coalition troops and civilians, including the misuse of civilian clothes,
white flags, hospitals, and mosques, and the use of human shields. IS
10.
11.
12.
13.
14.
15.
vember of 2002, against Nizar al-Khazraji, a former head of the Iraqi armed
forces. See Brendan Kileen, Denmark Seeks US Assurance Over Missing Iraqi
General, IRISH TIMES, Apr. 5, 2003, at 11. Ai-Khazraji, a high-ranking member of Saddam Hussein's regime who had defected, was living in Soro,
outside of Copenhagen, when he was charged under Denmark's universal
jurisdiction law with committing war crimes on Iraqi Kurds during the
1980s. Id. Specifically, he was charged with violating Articles 146 and 147
of the Fourth Geneva Convention, which deal with the protection of civilians in time of war. Id. See also Denmark-Iraq: International justice for the Victims of Halabja, Nov. 22, 2002, at http://www.amnestyusa.org/news/2002/
denmark-iraqI1222002.html. A war-crimes-based complaint was also filed
against Saddam Hussein in Belgium, under that country's broad universal
jurisdiction legislation. See Glenn Frankel, Belgian War Crimes Law Undone fly
Its Global Reach; Cases Against Political Figures Sparked Crises, WASH. POST,
Sept. 30, 2003, at AI. But the chances of any country opening its courts to
future war crimes controversies seem particularly diminished after
Belgium's experience. See id. Some commentators suggest that Belgium's
universal jurisdiction legislation, under which Rwandans were found guilty
of war crimes and complaints were filed against Israeli and American officials, has now been effectively "gutted" as a result of diplomatic crises. Id.
U.S. Defense Secretary Donald Rumsfeld told reporters in Belgium "that he
feared U.S. officials would not be able to visit the country for fear of being
prosecuted and that the United States would withhold further funding for
construction of a new NATO headquarters." Id. Rumsfeld further stated
that "Belgium needs to recognize that there are consequences for its actions ... [i]t's perfectly possible to meet elsewhere." Id.
Home at Last; jessica Lynch, Months After Being Injured in Iraq, Returns to West
Virginia, CHI. TRIB., July 23, 2003, at 3.
Phillip Coorey, TV Networks Refuse to Show Shocking Scenes, COURIER MAIL
(Queensland, Australia), Mar. 25, 2003, at 4.
Id.
Eric Schmitt & David E. Sanger, A Nation at War: Washington; U.S. Officials
Say Iraqis May Have Killed Some American PrisonersERROR! UNKNOWN SWITCH
ARGUMENT., N.Y. TIMES, Mar. 26, 2003, at B11.
See Jerry Adler,jessica's Liberation, NEWSWEEK, Apr. 14,2003, at 42,46.
See Mark Johnson et aI., 82nd Airborne Rings Paramilitaries; Commanders Unsure If Saddam Layalists Will Flee or Keep Fighting, CHARLOTTE OBSERVER, Apr.
3, 2003, at 6A (quoting Defense Department spokeswoman Torie Clarke:
"Iraqi troops are holed up in the mosque and firing at coalition forces ....
2003]
American Courts-Martial for Enemy War Crimes
51
As this paper is written, it is still too early to sift through accounts
from the recent conflict and definitively identify violations of internationallaw. 16 It is reasonable to assume, however, that some allegations
of war crimes will be sustained.
The intent to hold recent Iraqi war criminals accountable seemed
clear in the spring of 2003. President Bush publicly warned Iraqi officials that they would be held accountable for war crimes committed
during this conflict, and the U.S. Senate and the U.S. House of Representatives entered concurrent resolutions calling for prosecution of
Iraqi war crimes. 17 But a President's public vow to prosecute and a
legislature's resolve to do so are not enough. As many have persuasively argued in the years since the 1991 Persian Gulf War, many identified and documented war crimes went entirely unprosecuted and
unpunished after that war.18 Judicial forums must actually be convened if there is to be any redress for enemy war crimes. Moreover,
inaction now, in the face of flagrant violations of the laws of armed
conflict, would effectively sanction a continuing course of illegal conduct. Others have addressed the need for war crimes trials adjudicating genocide-level offenses; I am here concerned with the need to
adjudicate perfidy-level offenses, which almost inevitably result in indiscriminate killing.
Against all international laws of war, the regime's forces are using and abusing the mosque as a military fortress"); Neil A. Lewis, A Nation at War: War
Crimes; U.S. Is Preparing to Try Iraqis for Crimes Against Humanity and Mistreating Prisoners, N.Y. TIMES, Mar. 29, 2003, at B14 (reporting that Iraqi soldiers
falsely waved flags of surrender, used "human shields, forced conscription,
prevent[ed] the civilian population from fleeing, [fought] in civilian
clothes and us[ed] protected zones like hospitals for cover"); Neal A. Richardson & Spencer J. Crona, Commentary, Make Iraqis Pay for Acts of 'Perfidy';
Disguising Soldiers as Civilians Is a War Crime That Must be Prosecuted,
L.A.TIMES, Apr. 8, 2003, pt. 2, at 13 (reporting that "Fedayeen fighters
waved a white flag and then opened fire on U.S. soldiers preparing to accept surrender," and describing an ambush "in which an ostensibly pregnant woman lured three American soldiers to their deaths by pretending to
be in distress at a checkpoint and then detonating concealed explosives").
16. See, e.g., Mark Bowden, Ideas and Trends: War and Remembrance; Sometimes
Heroism Is a Moving Target, N.Y. TIMES, June 8, 2003, § 4, at 1 (describing
the conflicting news reports regarding the circumstances of the March 23,
2003 capture and rescue of Pfc. Jessica Lynch in Al-Nasiriya).
17. President Bush warned, during a speech about Iraq in Cincinnati, Ohio on
October 7, 2002, that "[a]ll war criminals will be pursued and punished."
Saddam Hussein is a Threat to Peace, WASH. POST, Oct. 8, 2002, at A20. Senator Joe Biden, a Democrat from Delaware, Representative Curt Weldon, a
Republican from Pennsylvania, and Senator Arlen Specter, a Republican
from Pennsylvania, introduced concurrent Senate and House resolutions
on April 8, 2003, calling for prompt prosecution of Iraqi government officials who directed or violated international laws of war. Tom Brune, Trial
Plan Called a 'Mistake,' NEWS DAY, Apr. 9, 2003, at A33.
18. See, e.g., James S. Robbins, War Crimes: The Case of Iraq, 18 FLETCHER F.
WORLD AFF. 45 (1994).
52
Baltimore Law Review
[Vol. 33
We must act; the question is one of forum. Given the inevitable
municipal disarray in a post-war society, legal action addressing war
crime allegations is best pursued in two phases involving different forums. This paper proposes that when America commits its troops to
fight wars on foreign lands, redress for war crimes should follow in
two distinct steps. The first step must be to convene U.S. military
courts-martial to prosecute mistreatment of American prisoners of war
and violations of the laws of armed conflict committed against American troops. The second phase should involve tribunals convened and
administered under the authority and direction of the new local government to address crimes that victimized civilians before and during
the military conflict.
Part II of this Article demonstrates that the United States Congress
has, since at least 1916, legislatively authorized courts-martial jurisdiction over foreign nationals accused of war crimes. Part III briefly describes some of the types of enemy actions that would constitute war
crimes. Part IV illustrates that U.S. judicial curtailment of courts-martial jurisdiction has not eliminated the option of court-martialing foreign enemy war criminals. Finally, Part V argues that regular military
courts-martial are a preferable option to specially-convened military
commissions because they set a better due process benchmark for the
forums that will follow.
II.
CONGRESSIONAL AUTHORI1Y FOR COURTS-MARTIAL JURISDICTION OVER INDIVlDUALS ACCUSED OF WAR
CRIMES 19
A.
History of the Legislative Grant ofjurisdiction20
The U.S. Constitution specifically grants to Congress: (1) the power
to "make Rules for the Government and Regulation of the land and
naval Forces";21 and (2) the power to "define and punish ... offenses
19. See generally DOROTHY V. JONES, TOWARD A JUST WORLD (2002) (a comprehensive history of international military tribunals and war crimes trials);
The Honorable Walter T. Cox III, The Army, the Courts, and the Constitution:
the Evolution of Military Justice, 118 MIL. L. REv. 1 (1987) (focusing on the
history of America's system of military justice and congressional involvement in its development).
20. For information regarding the legislative history of the Articles of War and
the UCMJ, the author is particularly indebted to the scholarship of Major
Jan E. Aldykiewicz, USA, and Major Geoffrey S. Corn, USA. The author's
summary of the legislative history of court-martial jursidiction over enemy
combatants is drawn from Part IV, and notes 28-73, of their article, and
from William Winthrop's 1920 text, Military Law and Precedents. See Major
Jan E. Aldykiewicz & Major Geoffrey S. Corn, Authority to Court-Martial NonU.S. Military Personnel for Serious Violations of International Humanitarian Law
Committed During Internal Armed Conflicts, 167 MIL. L. REv. 74,91-101 (2001);
WILLIAM WINTHROP, MILITARY LAw AND PRECEDENTS 778-98 (2d ed. 1920).
21. U.S. CaNST. art. I, § 8, c1. 14.
2003]
American Courts-Martial for Enemy War Crimes
53
against the Law of Nations."22 Congress originally exercised these
powers through the statutory enactment of numerous military codes,
known as the Articles of War, the earliest of which date back to the
American Revolution. 23 Then, in 1950, recognizing the need for a
single codified system of military law, separate from the criminal justice systems of the various states and of the Article III federal courts,
Congress enacted the Uniform Code of Military Justice ("UCMJ") to
replace the Articles of War. 24 Thus, the first grants of jurisdiction relevant to this discussion can be gleaned from the various congressionally-enacted Articles of War, and the current status of jurisdiction
must be derived from the UCMJ.
Congress authorized specific military jurisdiction over certain
crimes unique to time of war-such as aiding the enemy and spyingas early as 1775. 25 The original statutory Code of Articles of War, enacted in that year, provided at Article 27 that" [w] hosoever relieves
the enemy with money, victuals, or ammunition, or knowingly harbors
or protects an enemy ... " and at Article 28 that "[w]hosoever holds
correspondence with, or gives intelligence to, the enemy, either directly or indirectly ... " shall each "suffer death, or such other punishment as a court-martial may direct."26
The question of whether persons other than American soldiers can
be tried at courts-martial for time-of-war offenses is hardly a new issue.
Eighteenth and nineteenth-century legal scholars reviewing the above
language from the 1775 Articles debated that very question. 27 They
noted that, unlike other Articles, 27 and 28 began with an unqualified
"whosoever" rather than a qualified "whosoever serving in the continental army" and concluded that Articles 27 and 28 included civilians
within their jurisdiction. 28
In addition to the jurisdiction over certain limited offenses such as
aiding the enemy and spying, a clear, broader legislative grant of
courts-martial jurisdiction over all individuals, civilian and military,
who have committed war crimes first appeared in the 1916 Articles of
War.29 Article 12 of that statute provided, in pertinent part, as follows:
22. Id. cl. 10.
23. See WINTHROP, supra note 20, at 21-22.
24. Act of May 5, 1950, ch. 169,64 Stat. 107, 107-08 (1950). The UCMJ is currently codified as Chapter 47 of Title 10 ("Armed Forces") of the United
States Code. 10 U.S.C. §§ 801-941 (2000).
25. See WINTHROP, supra note 20, at 629 (indicating that Articles of War proscribing aiding and communicating with the enemy first appeared in 1775).
26. See id. at 102.
27. See id.
28. See id. (discussing Articles 27 and 28 of the 1775 Code: "Whether the word
'whosoever' is here employed in a general sense, and includes civil equally
with military persons, is a question frequently discussed in cases arising during the late war, but which must be regarded as determined by the weight
of reason and authority in the affirmative").
29. Articles of War of 1916, ch. 418, § 3, art. 12,39 Stat. 619, 652 (1917).
54
Baltimore Law Review
[Vol. 33
"General courts-martial shall have power to try any person subject to
military law for any crime or offense made punishable by these articles
and any other person who by the law of war is subject to trial by military tribunals."30
Prior to 1916, all previous Articles of War had limited courts-martial
jurisdiction to a particular class of persons-persons otherwise subject
to the code, or active duty military personnel and spies-or to only
certain types of offensesY Notably, other provisions of the 1916 Articles of War did retain language from earlier versions of the statute
limiting their jurisdiction to events occuring "in time of war."32 Article 12 of the 1916 Articles, however, contained none of those limitations. 33 Article 12 of the 1916 Articles of War was clearly written to
provide for courts-martial of war criminals, both enemy and
American. 34
Article 12 was amended slightly in 1920, but the key language,
quoted above, which granted courts-martial jurisdiction over two categories of people, those "subject to military law ... and . .. any other
person who by the law of war is subject to trial by military tribunals,"35
remained unchanged. 36 In 1946, the U.S. Supreme Court, in In re
Yamashita,37 acknowledged that Congress, through the Articles of
War, had expressly sanctioned military law jurisdiction over enemy
combatants for war crimes, via military commission or courts-martia1. 38 While affirming the post-WWII military tribunal convictions of
Japanese General Yamashita for violations of the law of war, the Court
explicitly described the various kinds of courts-martial jurisdiction as
follows:
Article 2 includes among those persons subject to the Articles of War the personnel of our own military establishment.
But this, as Article 12 indicates, does not exclude from the
class of persons subject to trial by military commissions "any
other person who by the law of war is subject to trial by military tribunals," and who, under Article 12, may be tried b~
court-martial, or under Article 15 by military commission. 3
30. Id. (emphasis added).
31. Aldykiewicz & Corn, supra note 20, at 92-94; Articles of War of 1916, ch.
418, § 3, art. 12,39 Stat. 619, 652 (1917).
32. Aldykiewicz & Corn, supra note 20, at 94-95.
33. Articles of War of 1916, ch. 418, § 3, art. 12,39 Stat. 619, 652 (1917).
34. Id.
35. Articles of War of 1920, ch. 227, art. 12,41 Stat. 759, 789 (1921) (emphasis
added).
36. Aldykiewicz & Corn, supra note 20, at 96.
37. 327 U.S. 1 (1946).
38. !d. at 7.
39. Id. General Yamashita was tried, convicted, and sentenced to death by
hanging based on charges specifying that he had failed to control the members of his command and had permitted them to commit "brutal atrocities
and other high crimes." Id. at 5, 13-14. The Supreme Court upheld mili-
2003]
American Courts-Martial for Enemy War Crimes
55
When the UCMJ was enacted in 1950, essentially codifying "military
law" as previously set forth in the Articles of War, the language of Article 12 became UCMJ Article 18. 40 UCMJ Article 18 was amended in
1956 and again in 1968. 41 The reference to persons subject to "military law" became a reference to persons subject to the UCMJ,42 but
Article 18 always retained the jurisdictional provision incorporating
persons not otherwise subject to jurisdiction, and the current version
of Article 18 is identical to the version passed in 1968. 43 Article 18
states that, in addition to jurisdiction over U.S. servicemembers regularly subject to the UCMJ: "General courts-martial also have jurisdiction to try any person who by the law of war is subject to trial by a
military tribunal 44 and may adjudge any punishment permitted by the
law of war .... "45 Thus, from 1916 to the present, Congress has expressly extended courts-martial jurisdiction to cover any persons, including civilian foreign nationals or enemy soldiers, who have
committed war crimes. 46
40.
41.
42.
43.
44.
tary commission jurisdiction over Yamashita, finding that Yamashita's commission "was in complete conformity to the Act of Congress sanctioning the
creation of such tribunals for the trial of offenses against the law of war
committed by enemy combatants." Id. at II.
Aldykiewicz & Corn, supra note 20, at 96. Section 818 comprises Article 18
of the UCMJ. 10 U.S.C. § 818 (2000).
Aldykiewicz & Com, supra note 20, at 97.
Aldykiewicz & Com, supra note 20, at 97; see also id. at 80 n.l0 (discussing
the term "persons subject to the code"). The critical point is that "foreign
nationals and U.S. citizens not listed in UCMJ Article 2(a)(I) through
2(a)(12) are not subject to the [UCMJ] and therefore are not subject to
general courts-martial under the first sentence of UCMJ Article 18." Id.
See id. at 96-97.
Vast attention and scholarship in the last two years has been devoted to the
point that enemy combatant war criminals qualify as persons who by the law
of war are subject to the jurisdiction of military tribunals. See, e.g., Christopher M. Evans, Note, Terrorism on Trial: The President's Constitutional Authority
to Order the Prosecution of Suspected Terrorists fly Military Commission, 51 DUKE
LJ. 1831 (2002); Lisa M. Ivey, Comment, Ready, Aim, Fire? The President's
E-Xecutive Order Authorizing Detention, Treatment, and Trial of Certain Non-citizens in the War Against Terrorism Is a Powerful Weapon, But Should it be Upheld?,
33 CUMBo L. REv. 107 (2002); Amanda Schaffer, Comment, Life, Liberty, and
the Pursuit of Terrorists: An In-depth Analysis of the Government's Right to Classify
United States Citizens Suspected of Terrorism as Enemy Combatants and Try Those
Enemy Combatants fly Military Commission, 30 FORDHAM URB. LJ. 1465 (2003).
Moreover, in 2001, President Bush signed Executive Order 222, entitled
"Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism." Exec. Order No. 222, 66 Fed. Reg. 57, 833 (Nov. 13,
2001). The Executive Order authorizes military tribunal prosecution of
certain enemy combatant war criminals. Id. §§ l(e), 2(a). The relative
merits of military tribunal and courts-martial prosecution are discussed at
Part V below.
45. Aldykiewicz & Corn, supra note 20, at 97 n.61 (emphasis added) (citing
Military Justice Act of 1968, art. 18, Pub. L. No. 90-632, 1968 U.S.C.CAN.
(82 Stat. 1335); see also 10 U.S.C. § 818 (2000).
46. See Aldykiewicz & Corn, supra note 20, at 97-98. The War Crimes Act of
1996 also gave federal courts jurisdiction over war crimes committed by or
56
B.
Baltimore Law Review
[Vol. 33
Executive Recognition of the Legislative Grant ofJurisdiction
While the legislatively-enacted UCMJ sets forth substantive law concerning courts-martial, procedural rules for courts-martial are set
forth in the Rules for Courts-Martia1. 47 The Rules for Courts-Martial
are promulgated by the President of the United States in his capacity
as Commander-in-Chief, are reviewed annually by the Executive
Branch, and are amended by Executive Order as deemed necessary.48
The current edition of the Rules for Courts-Martial acknowledges that
two types of war crime courts-martial jurisdiction exist in the UCMJ:
the first type explicitly includes only servicemembers; and the second
type includes any person, potentially including servicemembers, who
commits a war crime. 49
The acknowledgment of two types of war crimes courts-martial jurisdiction is first evident in Rule for Courts-Martial 201 (f) (1) (B), which
states that, in addition to the general courts-martial jurisdiction provided over "any person subject to the code," that "[g]eneral courtsmartial may try any person who by the law of war is subject to trial by
military tribunal for any crime or offense against ... [t] he law of war
.... "50 Additionally, in the discussion following Rule for Courts-Martial 307(c)(2), the drafters offer the following direction as to how to
bring charges based on war crimes: "Ordinarily persons subject to the
code [(distinguishing such persons from those not otherwise subject
to the code)] should be charged with a specific violation of the code
rather than a violation of the law of war."51 With this language, the
Rules for Courts-Martial implicitly recognize that Article IS's jurisdiction encompasses two types of war crimes defendants: "persons subject
to this chapter for any offense made punishable by this chapter"52 and
"any person who by the law of war is subject to trial by a military tribunal .... "53
47.
48.
49.
50.
51.
52.
53.
against U.S. nationals or members of the U.S. armed forces. See War
Crimes Act of 1996, 18 U.S.C. § 2441 (2000). The legislative history of that
bill indicates that some members of Congress mistakenly believed, contrary
to the plain language of Article 18, that courts-martial jurisdiction could
not reach beyond members of the U.S. armed forces, persons serving with
the armed forces in the field, and enemy prisoners of war. See Aldykiewicz
& Corn, supra note 20, at 144-50 (discussing the relationship between The
War Crimes Act of 1996 and Article 18); see also id. at 80 n.9 (citing H.R.
REp. No. 104-698, at 5 (1996), reprinted in 1996 U.S.C.C.A.N. 2166, 2170
(noting that "during the War Crimes Act debate, the viability of CQurt-martialing non-U.S. servicemembers for war crimes" was discussed and determined not to be a "viable option")).
See R.C.M. 101 (a) (2000).
See 1 FRANCIS A. GILLIGAN & FREDRIC I. LEDERER, COURT-MARTIAL PROCEDURE § 1-54.00 (2d ed. 1999).
R.C.M. 201(f) (l)(A), (B).
[d. at 201(f) (l)(B).
[d. at 307(c) (2) discussion.
10 U.S.C. § 818 (2000).
[d.
2003]
American Courts-Martial for Enemy War Crimes
57
In sum, a new statute is not needed to invoke courts-martial jurisdiction over foreign nationals, including enemy combatants, who commit
war crimes. In addition, a new Executive Order from the President is
not necessary to set forth the rules governing those courts-martial.
Such jurisdiction already exists under Article 18 of the UCMJ, and the
applicable procedures are those already used during courts-martial of
our own servicemembers. Courts-martial is a legislatively-sanctioned,
immediately-available forum for prosecuting war crimes committed
against American prisoners and troops in Iraq.
II.
ENEMY OFFENSES CONSTITUTING VIOLATIONS OF THE
LAW OF WAR
The Geneva Conventions of 1949, the two Additional Protocols to
the Geneva Conventions, and international treaties generally comprise the law of war or the law of armed conflict. 54 Because I advocate
American courts-martial only for enemy war crimes committed against
American prisoners and soldiers, the focus can be narrowed to the
specific laws of war applicable to these alleged types of offenses. In
November of 1992, the Department of Defense Office of General
Counsel prepared a classified report for the Judge Advocate General
of the Army specifically identifying substantiated instances of war
crimes committed by Iraqi military forces during and preceding the
1991 Persian Gulf War. 55 That report identified violations of the Geneva Conventions for the Protection of War Victims of August 12,
1949,56 to which Iraq is a party, and of Hague Conventions IV and VIII
of 1907,57 to which Iraq is not a party. 58 The report ultimately con54. See Center for Defense Information, Iraq: Questions Regarding the Laws oj
War, at http://www.cdi.org/iraq/lawsofwar-pr.cfm (last visited Mar. 18,
2003).
55. See SUMMARY OF REpORT ON IRAQI WAR CRIMES, supra note 6.
56. See id. at 11-13. The Geneva Conventions for the Protection of War Victims
of August 12,1949, are comprised of the following: (1) Geneva Convention
for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field, Aug. 12,1949,6 V.S.T. 3114, 75 V.N.T.S. 31 [hereinafter First Geneva Convention]; (2) Geneva Convention for the Amelioration
of the Condition of the Wounded, Sick and Shipwrecked Members of
Armed Forces at Sea, Aug. 12, 1949, 6 V.S.T. 3217, 75 V.N.T.S. 85; (3)
Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12,
1949, 6 V.S.T. 3316, 75 V.N.T.S. 135 [hereinafter Third Geneva Convention]; (4) Geneva Convention Relative to the Protection of Civilian Persons
in Time of War, Aug. 12, 1949,6 V.S.T. 3516, 75 V.N.T.S. 287 [hereinafter
Fourth Geneva Convention].
57. See SUMMARY OF REpORT ON IRAQI WAR CRIMES, supra note 6, at 11-13. See
also Convention (IV) respecting the Laws and Customs of War on Land and
its annex: Regulation concerning the Laws and Customs of War on Land,
Oct. 18, 1907, 3 Martens Nouveau Recueil (ser. 3) 461, available at http:/ /
wwwl.umn.edu/humanrts/instree/1907c.htm [hereinafter Hague IV];
Convention (VIII) Relative to the Laying of Automatic Submarine Contact
Mines, Oct. 18, 1907, 3 Martens Nouveau Recueil (ser. 3) 580, available at
http://wwwl.umn.edu/humanrts/instree/1907g.htm.
58
Baltimore Law Review
[Vol. 33
eluded that "Iraqi violations of the law of war were widespread and
premeditated."59
Based on written and videotaped witness accounts and photographs, videotapes, and other documentary evidence, sixteen specific
categories of war crimes were found to have been committed by Iraq
during the 1991 Persian Gulf War. 60 Two of those categories concern
war crimes committed against American prisoners, soldiers, and civilians. 61 Given the early reports of potentially analogous offenses committed during the recent conflict, those types of war crimes serve as
particularly relevant examples here. 62 These two categories of crimes
are: (1) torture and other "inhumane" treatment of prisoners of war,
in violation of the Third Geneva Convention;63 and (2) the use of
subterfuge through civilian human shields in violation of the Fourth
Geneva Convention. 64
58. Though Iraq is not a party to the 1907 Hague Conventions, the Judge Advocate General has concluded, at least with regard to offenses committed during the 1991 Persian Gulf War, that Iraqi citizens are bound by their
provisions and subject to prosecution for violations of the law of war as
therein set forth because those conventions have become a part of customary international law. See Summary of Report on Iraqi War Crimes, supra
note 6, at 2.
59. [d. at 11.
60. See id. at 8, 11-13.
61. See id. at 11-12.
62. See supra notes 12-16 and accompanying text.
63. SUMMARY OF REpORT ON IRAQI WAR CRIMES, supra note 6, at 12 (identifying
such war crimes as violations of Articles 13, 17, 22, 25, 26, 27, and 130 of the
Third Geneva Convention). Article 13 of the Third Geneva Convention
mandates that prisoners of war "at all times be humanely treated." Third
Geneva Convention, supra note 56, art. 13, 6 V.S.T. at 3328, 75 V.N.T.S. at
146. Article 17 of the Third Geneva Convention provides, among other
things, that "[n]o physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information
of any kind whatever." [d. art. 17, 6 V.S.T. at 3332, 75 V.N.T.S. at 150.
Article 22 of the Third Geneva Convention requires that prisoners of war
be interned only in healthy and hygenic areas. [d. art. 22,6 V.S.T. at 3336,
75 V.N.T.S. at 154. Article 25 of the Third Geneva Convention similarly
requires, among other things, that prisoners of war be housed in warm, dry
quarters with adequate light. [d. art. 25, 6 V.S.T. at 3338, 75 V.N.T.S. at
156. Article 26 of the Third Geneva Convention requires that prisoners of
war be given decent, nutritious food and clean water. [d. art. 26,6 V.S.T. at
3340, 75 V.N.T.S. at 158. Article 27 of the Third Geneva Convention requires that prisoners of war be provided with adequate, climate-appropriate
clothing. [d. art. 27, 6 V.S.T. at 3340, 75 V.N.T.S. at 158. Finally, Article
130 of the Third Geneva Convention describes "wilful [sic] killing, torture
[or] inhuman treatment" of prisoners of war as "grave breaches" of the
Convention. [d. art 130, 6 V.S.T. at 3420, 75 V.N.T.S. at 288.
64. SUMMARY OF REpORT ON IRAQI WAR CRIMES, supra note 6, at 12 (identifying
such war crimes as violations of Articles 28 and 38 (4) of the Fourth Geneva
Convention). Article 28 of the Fourth Geneva Convention provides that
"[t]he presence of a protected person may not be used to render certain
points or areas immune from military operations." Fourth Geneva Convention, supra note 56, art. 28, 6 V.S.T. at 3538, 75 V.N.T.S. at 308. Article
2003]
American Courts-Martial for Enemy War Crimes
59
Media reports from the recent conflict suggest that Iraqis may have
violated other treaties as well. 65 For instance, Article 23 of Hague
Convention IV prohibits killing or wounding the enemy "treacherously," improperly using a flag of truce, and killing an enemy soldier
who has surrendered. 66 Fighting in civilian clothes to feign non-combatant status and feigning surrender would constitute violations of the
first 1977 Additional Protocol to the Geneva Convention ("Protocol
1").67 Lastly, fighting from hospital zones violates the First Geneva
Convention,68 and using mosques as fortresses violates Article 53 of
Protocol I and the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. 69 These crimes, partic-
65.
66.
67.
68.
69.
38( 4) of the Fourth Geneva Convention provides that" [i]f [protected persons] reside in an area particularly exposed to the dangers of war, they shall
be authorised [sic] to move from that area to the same extent as the nationals of the State concerned." [d. art. 38(4), 6 V.S.T. at 3542, 75 V.N.T.S. at
312.
See, e.g., supra notes 12-16 and accompanying text.
Hague IV, supra note 57, art. 23, 3 Martens Nouveau Recueil (ser. 3) at xx.
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims ofInternational Armed Conflicts,june 8,
1977, art. 37,1125 V.N.T.S. 3 [hereinafter Protocol I]. Article 37 of Protocol I generally prohibits killing, injuring or capturing an adversary by "resort to perfidy.' [d. art. 37(1), 1125 V.N.T.S. at 21. It defines perfidy as
"[a]cts inviting the confidence of an adversary to lead him to believe that
he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence" and gives four examples of perfidy:
(A) The feigning of an intent to negotiate under a flag of truce or
of a surrender; (B) The feigning of an incapacitation by wounds or
sickness; (C) The feigning of civilian, non-combatant status; and
(D) The feigning of protected status by the use of signs, emblems
or uniforms of the Vnited Nations or of neutral or other States not
Parties to the conflict.
[d. Some may be inclined to argue that the Iraqi tactics are mere "ruses of
war" necessary to engage a superior foe. Article 37 clarifies that "[r]uses of
war are not prohibited," and defines "ruses" as "acts which are intended to
mislead an adversary or to induce him to act recklessly but which infringe
no rule of international law applicable in armed conflict and which are not
perfidious because they do not invite the confidence of an adversary with
respect to protection under that law." [d. art. 37(2), 1125 V.N.T.S. at 21-22.
It lists the following examples: "the use of camouflage, decoys, mock operations and misinformation." [d. art. 37(2), 1125 V.N.T.S. at 22. Clearly,
white flags and civilian clothes are examples of perfidy, not ruses. Though
neither Iraq nor the Vnited States has signed Protocol I, its provisions are
generally recognized as customary international law and therefore are binding even on states that are not parties to it.
First Geneva Convention, supra note 56, art. 19, 6 V.S.T. at 3128, 75
V.N.T.S. at 44 (providing that medical units and establishments "may in no
circumstances be attacked, but shall at all times be respected and protected
by the Parties to the conflict").
Protocol I, supra note 67, art. 53, 1125 V.N.T.S. at 27 (prohibiting the commission of acts of hostility against "places of worship"); Convention for the
Protection of Cultural Property in the Event of Armed Conflict, May 14,
1954, arts. 1,2,249 V.N.T.S. 215,242 [hereinafter the 1954 Hague Conven-
60
Baltimore Law Review
[Vol. 33
ularly where they appear to have been executed as a matter of policy
and strategy, are of the type that I propose be adjudicated in the first
phase of post-conflict accountability by American-convened courtsmartial.
Additional war crimes identified in the 1992 report may also prove
to be analogous to offenses committed in the recent conflict. Such
war crimes include compelling foreign nationals to serve in the Iraqi
armed forces in violation of the Fourth Geneva Convention, and indiscriminate missile attacks and unnecessary destruction in violation of
Hague IV. 70 Those crimes, however, are examples of the types appropropriate for adjudication during what I have characterized as the
second phase of war crimes accountability, consisting of Iraqi-convened forums. 71
As summarized in the Introduction, various media reports give
strong indication that war crimes were committed by Iraqis against
American soldiers during the recent war. 72 At this writing, official investigations into those incidents are underway.73 Assuming substantiating evidence is ultimately uncovered, and having established in Part
II that courts-martial is an available forum, the following sections set
forth why courts-martial prosecution is an appropriate and advantageous first forum for prosecution of those war crimes.
IV. JUDICIAL CURTAILMENT OF COURTS-MARTIAL JURISDICTION HAS NOT LIMITED ARTICLE 18 JURISDICTION
Though, as described in Part II, Congress clearly intended for the
UCMJ to cover enemy war criminals, it must briefly be acknowledged
that the original jurisdictional reach of the UCMJ has been judicially
curtailed in several significant ways. These limitations on courts-martial jurisdiction have created the widespread misperception that
courts-martial cannot try anyone but servicemembers. 74 Over the last
fifty years, in three main respects, courts have rejected language in the
UCMJ that evidenced a Congressional intent to subject persons other
70.
7l.
72.
73.
74.
tion] (providing that "cultural property" covered by the Convention includes religious buildings and monuments and mandating the
"safeguarding of and respect for" such property).
See SUMMARY OF REpORT ON IRAQI WAR CRIMES, supra note 6, at 12.
See infra note 114 and accompanying text. Other treaties to which Iraq is a
party might also serve as a basis for locally-convened war crimes prosecutions during this second phase. Such treaties include: the Protocol for the
Prohibition of the Vse in War of Asphyxiating, Poisonous or Other Gases,
and of Bacteriological Methods of Warfare, June 17, 1925,26 V.S.T. 571,14
I.L.M. 49; and the Convention for the Protection of Cultural Property in
the Event of Armed Conflict, May 14, 1954, 249 V.N.T.S. 215.
See supra notes 10-15 and accompanying text.
See Lewis, supra note 15.
See, e.g., supra note 44-46 and accompanying text (discussing the legislative
history of the War Crimes Act of 1996).
2003]
American Courts-Martial for Enemy War Crimes
61
than active duty American military members to trial by courtsmartia1. 75
The first example of judicial reluctance to let Congress extend
courts-martial jurisdiction beyond American servicemembers concerns Article 2(11) of the UCM]. Article 2(11) was amended in 1956
by Congress specifically to subject "persons serving with, employed by,
or accompanying the armed forces outside the United States" to
courts-martialjurisdiction. 76 In 1957, and again in 1960, the U.S. Supreme Court declared such jurisdiction unconstitutional as applied to
civilian dependents and employees. 77 In Reid v. Covert, by a 6-3 vote,
the Supreme Court reversed the courts-martial murder convictions of
two dependent wives who had each been separately convicted of murdering their servicemember husbands, one while stationed in England, and one while stationed in Japan. 78 The Court held that
civilian dependents of members of the armed forces overseas could
not constitutionally be tried by a court-martial in times of peace for
capital offenses committed abroad. 79 Then, in Kinsella v. U.S. ex rel.
Singleton, by a 5-4 vote, the Supreme Court held that the courts-martial
involuntary manslaughter conviction of a dependent wife was also unconstitutional, finding any distinction between capital and non-capital
offenses to be constitutionally insignificant. 8o The Court reached the
same decision in another 1960 case, McElroy v. U.S. ex rel. Guagliardo,
regarding the application of Article 2(11) jurisdiction to civilian em75. See, e.g., Reid v. Covert, 354 U.S. 1 (1957) (invalidating the extension of
Article 2(11) of the UCMJ); U.S. ex rel. Toth v. Quarles, 350 U.S. 11 (1955)
(invalidating portions of Article 3(a) of the UCMJ); Latney v. Ignatius, 416
F.2d 821 (D.C. Cir. 1969) (questioning Article 2(10) of the UCMJ).
76. 10 U.S.C. § 802(11) (1958).
77. See Kinsella v. U.S. ex rel. Singleton, 361 U.S. 234 (1960); McElroy v. U.S. ex
rel. Guagliardo, 361 U.S. 281 (1960); Reid v. Covert, 354 U.S. 1 (1957).
78. 354 U.S. at 3-4, 41, 65.
79. Id. at 5.
80. 361 U.S. at 235-36, 248-49. Though court-martial prosecution of civilian
dependents has been invalidated by the U.S. Supreme Court, military commission prosecution of civilian dependents during times of military government jurisdiction overseas has been upheld. In Madsen v. Kinsella, a case
that preceded Reid v. Covert, the Court recognized that the United States
Court of the Allied High Commission, established in the American Zone in
Occupied Germany, had the constitutional authority under military governmentjurisdiction to try civilian Yvette Madsen for the murder of her active
duty husband. 343 U.S. 341, 342-43 (1952). While denying Madsen's
habeas petition, the Court observed:
[A]s Commander-in-Chief of the Army and Navy of the United
States, [the President] may, in time of war, establish and prescribe
the jurisdiction and procedure of military commissions, and of
tribunals in the nature of such commissions, in territory occupied
by Armed Forces of the United States. His authority to do this
sometimes survives cessation of hostilities.
Id. at 348, 362. Madsen was charged under the German Criminal Code and
was committed to the Federal Reformatory for Women in Alderson, West
Virginia. Id. at 344-45.
62
Baltimore Law Review
[Vol. 33
ployees. 81 In McElroy, the Court, by a 5-4 vote, reversed the courtsmartial convictions of a civilian Air Force employee in Morocco and a
civilian Army employee in Germany, finding the convictions to be unconstitutional extensions of military jurisdiction over U.S. citizens. 82
Another Congressional extension of courts-martial jurisdiction was
invalidated in 1955. 83 Article 3(a) of the UCMJ provides that courtmartial jurisdiction is retained when a servicemember commits a
crime on active duty but separates from the service before court-martial proceedings commence. 84 That type of jurisdiction was declared
unconstitutional in Toth v. Quarles. 85 The Supreme Court, in a 6-3
decision, invalidated the' court-martial of Robert Toth, a former servicemember convicted of committing a murder in Korea while on active duty with the Air Force. 86 Notably, the Toth Court opined that
Congress could have constitutionally created such jurisdiction, but
had not done SO.87
The final way that courts have limited Congress's attempts to extend
the reach of courts-martial jurisdiction beyond active duty servicemembers concerns Article 2(a)(1O) of the UCMJ. Article 2(a)(10)
provides that "[iJn time of war, persons serving with or accompanying
an armed force in the field" are subject to courts-martial jurisdiction. 88 This provision has not been reviewed by the Supreme Court,
but it was rejected during the Vietnam War by a federal appellate
court in Latney v. Ignatius. 89 The Latney court found Article 2(a)(10)
courts-martial jurisdiction to be unconstitutional, at least as applied to
a civilian seaman serving under time charter to the Navy.90
In sum, despite contrary Congressional intent, the U.S. Supreme
Court has taken the position that a court-martial may not try a U.S.
citizen unless that citizen was in the U.S. armed forces at the time of
the crime and at the time of the tria1. 91 Some commentators may be
tempted to broadly suggest that this indicates a judicial intent to permit courts-martial only against active duty servicemembers. But the
judicial curtailment of UCMJ jurisdiction described above has only
limited when courts-martial may be convened to try American citizens.
Other well-known domestic 92 and international93 precedents clearly
81.
82.
83.
84.
85.
86.
87.
88.
89.
90.
91.
92.
361 U.S. 281 (1960).
Id. at 282-83, 287.
U.S. ex rel. Toth v. Quarles, 350 U.S. 11, 11 (1955).
See 10 U.S.C. § 803(a) (2000).
350 U.S. at 23.
Id. at 13, 23.
Id. at 21 ("If Congress had included this jurisdiction, it would be proper.").
10 U.S.C. § 802(a) (10).
416 F.2d 821, 823 (D.C. Cir. 1969).
Id.
See supra notes 74-90 and accompanying text.
For a history of early American military commissions and courts, see Major
Timothy C. MacDonnell, Military Commissions and Courts-Martial: A Brief Discussion of the Constitutional and jurisdictional Distinctions Between the Two
2003]
American Courts-Martial for Enemy War Crimes
63
support the jurisdiction of military courts over enemy war crimes.
Thus, despite some judicially-imposed limitations on Congress's intent, courts-martial remain an entirely viable forum for prosecution of
war crimes committed by foreign nationals. The following discussion
sets forth why courts-martial are a particularly appropriate forum for
war crimes recently committed against Americans in Iraq.
v.
FOR PROSECUTION OF IRAQI WAR CRIMES AGAINST AMERICAN PRISONERS AND SOLDIERS, REGULAR MILITARY
COURTS-MARTIAL ARE A PREFERABLE OPTION TO SPECIALLY-CONVENED MILITARY COMMISSIONS
The Bush administration has pointedly reserved military commissions as one option for prosecution of enemy combatant war
criminals. 94 Although it has been described by the Administration as
a tool to be used against "foreign enemy war criminals,"95 the language of President Bush's November 13, 2001 Military Order authorizes military commission prosecutions only of members of AI Qaeda,
international terrorists, and those who harbor them. 96 It has been reported that we may pursue justice against Iraqi war criminals via an
amendment to that order, or through an entirely new order establishing similar military commissions for war crimes committed in Iraq.97
93.
94.
95.
96.
97.
Courts, 2002 ARMY LAw 19 (2002), and Major Michael O. Lacey, Military
Commissions: A Historical Survey, 2002 ARMY LAw 41 (2002). Virtually every
American armed conflict since the American Revolution has seen military
jurisdiction prosecution of war crimes. See Lacey, supra, at 4l.
Military trials of war criminals are hardly unique to the American military
justice system. In the aftermath of WWII, for example, over two thousand
war crimes trials were conducted by ten different countries. SeejoNEs, supra
note 19, at 168.
Alberto R. Gonzales, Editorial, Martialjustice, Full and Fair, N.Y. TIMES, Nov.
30, 2001, at A27.
According to White House counsel Alberto R. Gonzales, the military commissions authorized in the President's Nov. 13, 2001 Military Order would
be applied only to "foreign enemy war criminals." [d.
Exec. Order No. 222, 66 Fed. Reg. 57,833, 57,834 (Nov. 13, 2001). President Bush's November 13, 2001 Military Order sets forth three categories
of individuals to be potentially tried by military commission: (1) anyone
whom the President finds reason to believe is or was a member of Al Qaeda;
(2) anyone whom the President finds reason to believe "has engaged in,
aided or abetted, or conspired to commit, acts of international terrorism,
or acts in preparation therefor, that have caused, threaten to cause, or have
as their aim to cause, injury to or adverse effects on the United States, its
citizens, national security, foreign policy, or economy"; or, (3) anyone
whom the President finds reason to believe "has knowingly harbored one
or more individuals" described in the first two categories. [d. Though
much criticism has been levied against the Order's use of the word "harbored," one cannot resist noting that this language practically mirrors the
language used in Article 27 of the original 1775 Articles of War. See supra
notes 26-29 and accompanying text (discussing the language of Article 27).
Neal A. Lewis, Tribunals Nearly Ready for Afghanistan Prisoners, N.Y. TIMES,
Apr. 8, 2003, at Bll.
64
Baltimore Law Review
[Vol. 33
The November 13, 2001 Military Order itself prompted an immediate
flurry of domestic and international criticism, from legal scholars, political pundits, and moral philosophers. 98 A brief review of the main
criticisms levied against military commissions demonstrates why courtmartial is a preferable forum for prosecution of enemy war criminals.
The most resonant criticisms of the President's Order establishing
military commissions have been those directed towards its perceived
procedural short-cuts-the authorization of prosecutions providing
less due process than would be available to U.S. federal district court
defendants. 99 Typical of these criticisms is the expressed concern that
the potential military commissions fall short of "the kind of fundamentally fair trial process that America has held up to the world as the
standard for criminal adjudications."lOo Indeed, the American Bar Association ("ABA") commissioned a task force to address whether the
commissions would fall short of "recognized standards of American
]ustice."lOl
The initial criticisms of the proposed commissions cited the following specific procedural shortcomings: the absence of some form of
grandjury-like presentment; the possibility of closed, rather than
open trials; the absence of the opportunity for the accused to retain
counsel of his choice; the possibility that the death penalty could be
handed down by a non-unanimous verdict; and the absence of full
appellate rights, including the opportunity to petition the U.S. Supreme Court for a writ of certiorari. 102 Many, but not all, of these
98. See Michael J. Kelly, Essay: Understanding September 11 th-An International Legal Perspective on the War in Afghanistan, 35 CREIGHTON L. REv. 283 (criticizing Executive Order No. 222 as "illegal"); Letter from William A. Courson,
Executive Director of the Magnus Hirschfeld Centre for Human Rights, to
Members of the New Jersey Delegation of the United States Senate and the
United States House of Representatives, (Dec. 1,2001), available at http://
legalminds.lp.findlaw.com/list/ queerlaw-edit/ msg03 736.html (describing
the Order as yet another "blow against the Constitution" and accusing the
President of "bypass ring] fundamental principles of justice").
99. See Kelly, supra note 98, at 290 (stating that the Order "breaches other protections by eliminating the right to appeal, not ensuring an independent
and impartial court, and not providing for private conferral with counsel").
Many commentators also attacked the potential commissions as unconstitutional, and lacking a proper jurisdictional predicate. See, e.g., Neil K. Katya
& Lawrence H. Tribe, Waging War, Deciding Guilt: Trying the Military Tribunals, 111 YALE LJ. 1259, 1259-60 (2002). Thosejurisdiction-based, absenceof-proper-Iegislative-mandate criticisms are unlikely to carry over to military
trials of war crimes committed by soldiers and government officials during
the recent war in Iraq and thus are not summarized here.
100. ]. Gordon Forester,Jr., & Kevin]. Barry, Military Commissions: Meeting American Standards ofjustice, 49 FED. LAw. 28, 29 (2002).
101. REpORT AND RECOMMENDATIONS ON MILITARY COMMISSIONS, 2002 A.B.A.
TASK FORCE ON TERRORlSM AND THE LAw I,JAN. 4, 2002, available at http:/ /
www.abanet.org/leadership/military.pdf.
102. Id. at 16-17 (recommending that procedures for military commissions convened under the authority of the President's Order provide for prompt notice of charges, proceedings open to the press and public, the opportunity
2003]
American Courts-Martial for Enemy War Crimes
65
concerns are addressed and effectively mooted by the Department of
Defense ("DOD") regulations promulgating procedures for the commissions. 103 The drafters of the DOD regulations on military commissions do seem to have taken many of the criticisms, and especially the
recommendations of the ABA, to heart. lo4
But not all commentators are satisfied with the procedures set forth
in the DOD regulations. Continuing criticisms include: (1) denial of
the right to trial before a "regularly-constituted" tribunal; (2) lack of
review of commission proceedings by an independent, impartial
court-military commissions would be reviewed only by the Secretary
of Defense or President; (3) denial of the "full federal or military rules
of evidence"-the DOD rules permit some hearsay evidence and unsworn written statements and otherwise relax the rules of evidence;
and (4) lack of judicial review of detention. 105 We can reasonably expect that both American and international observers will continue to
voice such criticisms if tribunals are convened.
By comparison, courts-martial is a forum that: (1) is regularly-constituted;I06 (2) is appealable to the U.S. Supreme Court;107 (3) is governed by the Military Rules of Evidence, which largely mirror the
Federal Rules of Evidence;lo8 and (4) provides for pretrial confinement review lo9 and prohibits charge less indefinite detentions. 110
Thus, following established courts-martial procedures, rather than
those authorized by the DOD regulations, would avert many, if not all,
of the due-process-based criticisms levied against military commis-
103.
104.
105.
106.
107.
108.
109.
110.
for defendants to choose their own counsel, the right to review of conviction and sentence by a higher tribunal, and a prohibition of the death penalty on less than a unanimous vote of all members of the commission).
See DEPARTMENT OF DEFENSE, MILITARY COMMISSION ORDER No.1, PROCEDURES FOR TRIALS BY MILITARY COMMISSION OF CERTAIN NON-UNITED STATES
CITIZENS IN THE WAR AGAINST TERRORISM (Mar. 21, 2002), available at http:/
/www.defenselink.mil/news/Mar2002/ d20020321 ord. pdf.
See id. (providing the accused with the opportunity to choose his or her
own military or civilian counsel under certain circumstances, and providing
that proceedings should be open "to the maximum extent practicable").
Jordan]. Paust, Antiterrorism Military Commissions: The Ad Hoc DOD Rules of
Procedure, 23 MICH.]. INT'L L. 677, 678-89 (2002). Paust notes that the "improprieties" in Military Commission Order No. 1 miITor the improprieties
concerning the Peruvian military commissions addressed by the InterAmerican Court of Human Rights. Id. at 678 (citingJordanJ. Paust, Antiterrorism Military Commissions: Courting Illegality, 23 MICH.]. INT'L L. 1, at 10 &
n.20 (2001».
See RC.M. 501 (a) (2000) (governing courts-martial composition).
See RC.M. 1205 (permitting review of courts-martial decisions by the Supreme Court).
Gregory P. Noone, Essay: President Bush's Military Order: Detention, Treatment
and Trial of Certain Non-Citizens in the War Against Terrorism, 34 CAsE W. REs.
]. INT'L L. 253, 255 (2002).
See RC.M. 305(i).
See RC.M. 308(a) (requiring that the accused be notified of the charges
against him as soon as possible).
Baltimore Law Review
66
[Vol. 33
sions. l l l In one sense, convening courts-martial to try enemy war
criminals is virtually immune from criticism-if court-martial offers
sufficient due process for the men and women serving in the American armed forces, critics will be hard-pressed to argue that others are
somehow due more. Court-martial prosecution has the appealing
symmetry of offering exactly the same procedural safeguards to those
captured by the American military and charged with crimes as would
be applied to an American soldier who commits a crime in the process
of that capture.
VI.
CONCLUSION
I do not expect American courts-martial convened for enemy war
crimes to be embraced by every critic. They will not provide a complete retributive panacea or a perfect path to reconciliation. I only
propose that we give consideration to courts-martial as a third possible
option for addressing crimes committed against our soldiers during
armed conflict, given that our current consideration seems limited to
either (1) inaction and acquiescence, or (2) military commissions.
Even the most stalwart critics of military justice forums must concede
that the Geneva Conventions give us the right to try enemy prisoners
who have committed war crimes against our soldiers,112 and that
courts-martial prosecutions satisfy international norms regarding the
rights to be afforded even unprivileged combatants in criminal proceedingsy3 Moreover, the two-phased approach to post-conflict justice that I have advocated may help legitimize the actions of the
fledgling government by establishing some clear separation between
American and Iraqi war crimes forums.
In April 2003, the world watched as American Marines and Iraqi
civilians in Bagdhad's Firdos Square pulled down a 40-foot bronze
statute of Saddam Hussein. In subsequent years, when it comes time
to prosecute war crimes committed against American prisoners and
American soldiers in Iraq, the world will be watching just as intently.
We must decide, and soon, exactly what precedent American military
justice will set. If post-war Iraq is to accomplish the transition from
oppression to a free and just society, redress for war crimes committed
against American prisoners and soldiers is only the first phase of accountability. Other forums must certainly follow the initial prosecutions; forums such as Iraqi tribunals to adjudicate crimes committed
111. Some critics of the tribunals have conceded as much. See, e.g., Forester &
Barry, supra note 100, at 28 ("If they are to be fundamentally fair, military
commissions must follow court-martial procedures and be subject to some
sort of meaningful judicial review.").
112. See supra notes 56-64, 68 and accompanying text (describing violations of
the Geneva Conventions committed by Iraqis during both the 1991 Persian
Gulf War and the recent conflict in Iraq).
113. See, e.g., Protocol I, supra note 67, art. 75, 1125 V.N.T.S. at 52.
2003]
American Courts-Martial for Enemy War Crimes
67
by Hussein's regime against the Iraqi populace,114 and possibly even
Kuwaiti courts seeking accountability from Iraqi regime officials accused of war crimes from the last decade. America has the opportunity, through its system of military justice, to set an example of
immediate and just redress. If one is not set, history suggests that future Iraqi or Kuwaiti forums will be no more than kangaroo courts
susceptible to the "victors' vengeance" criticismYs Having committed
troops to armed conflict abroad, America also has the moral obligation to ensure that crimes of perfidy and other violations of the law of
war do not continue to go unpunished and thereby become the de
facto means of defense against an asymmetric force.
Crimes were unquestionably committed against Americans during
the 1991 Persian Gulf War. 116 The international norms and rules of
armed conflict appear to have been openly flouted by Iraqi forces during the recent war as well. The first forum convened to try those
crimes must provide expedient but judicious resolutions. It should
also be a forum that can effectively set a due process benchmark for
post-conflict justice in a new, free society. American courts-martial is
that forum.
114. For post-conflict societies trying to shift from tyranny to democracy, the
main routes to this "transitional justice" have historically been criminal
prosecution or grants of amnesty. For a thorough review of the advantages
and disadvantages of retributive justice during societal transition, see Erin
Daly, Transformativejustice: Charting a Path to Reconciliation, 12 INT'L LEGAL
PERSP. 73, 74-76 (2002) (noting that the new government's response to past
abuses is an important opportunity to accomplish some transformation of
the culture and arguing that neither prosecution nor amnesty adequately
serves the goal of transformation). Other scholars have argued, pointing to
the examples of South Mrica's TRC and Rwanda'a gacaca tribunals, that in
many cases reconciliation may simply be a more important societal goal
than the retribution offered by criminal adjudication. See Bert van
Roermund, Rubbing Off and Rubbing On: The Grammar of Reconciliation, in
LETHE'S LAw: JUSTICE, LAw, AND ETHICS IN RECONCILIATION (Emilios Christodoloudidis & Scott Veitch eds., Hart Publishing 2001) at 180 (describing
reconciliation as the situation where victims "defer the right to retribution
to the extent that retribution would obstruct peace").
115. Iraq's U.S.-appointed Governing Council announced on October 2, 2003,
that it was preparing a "domestic war crimes tribunal" to "try members of
Saddam Hussein's government and Hussein himself should he be captured." Karl Vick, Iraqi War Crimes Tribunal Proposed; 2 More US. Soldiers
Killed in Attacks, WASH. POST, Oct. 2, 2003, at A14 (noting that "[s]uch a
course would defy the recommendation of international legal experts who
have warned that an Iraqi court would generate suspicions of "Victor's justice," or manipulation by the American authorities who retain ultimate
power in Iraq").
116. See supra notes 1-6 and accompanying text; see also supra notes 55-64 and
accompanying text.